Records in the New Tech World

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Erick McCormick
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1 Social Media, Texting and Public Records in the New Tech World PALM BEACH COUNTY LEAGUE OF CITIES JULY 23, 2014 DAVID N. TOLCES, ESQ. GOREN, CHEROF, DOODY & EZROL, P.A E. COMMERCIAL BLVD., SUITE 200 FORT LAUDERDALE, FL Goren, Cherof, Doody & Ezrol, P.A. 2013

GOREN, CHEROF, DOODY & EZROL, P.A. 3099 E. COMMERCIAL BLVD.

2 Types of Social Media Being Used by Public Entities Facebook Twitter YouTube Blogs

3 Facebook Public Entities & Officials There is no legal prohibition against PUBLIC ENTITIES (municipalities, counties, taxing districts, etc ) or PUBLIC OFFICIALS (appointed or elected) from having a Facebook or other social ilmedia page, subject to certain limitations and conditions. Public Records/Records Retention Sunshine Law

(appointed or elected) from having a Facebook or other social ilmedia page,

4 Legal Authority (Municipalities) Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal ii services, and may exercise ANY POWER FOR MUNICIPAL PURPOSES except as otherwise provided by law. See Article VIII, Section 2(b), Florida Constitution, and Section , F.S.

and render municipal ii services, and may exercise ANY POWER FOR MUNICIPAL PURPOSES except as

5 Municipal/Public Purpose Does the use of the social media tool serve a public Does the use of the social media tool serve a public purpose?

6 Legal Considerations 1) The Sunshine Law Section , F.S. 2) The Public Records Act Ch. 119, F.S. 3) Records Retention Section , F.S. 4) Use of Official Seal Section , F.S.

119, F.S. 3) Records Retention Section 257.

7 The Sunshine Law Section , F.S. 1) Meetings of public boards or commissions must be open to the public; 2) Reasonable notice of such meetings must be given; and 3) Minutes of the meetings must be taken and promptly 3) g p p y recorded.

8 The Sunshine Law Continued Applies to meetings oftwo(2) or more members of the same collegial body. Must be construed so as to avoid all evasive devices. Town of Palm Beach v. Gradison, 296 So.2d 473m 477 (Fla. 1974). Physical presence of two (2) or more members of the same collegial body is not necessary. Members of a public board may not use computers to conduct a private discussion among themselves about mattes which may foreseeably come before them in their official capacity. See AGO (1989) and AGO (2009).

Physical presence of two (2) or more members of the same collegial body is not necessary.

9 Use of Blog or Message Board The use of a blog or message board by one (1) member of a collegial body to solicit comments from other members does trigger the requirements of the SunshineLaw. See AGO (2008).

to solicit comments from other members does trigger

10 Facebook Posting on the Wall No prohibition against a Commission member posting comments on a Facebook page (including a City s page), but members of the Commission must not engage in anexchange or discussioni of any matter that foreseeably will come before the Commission for official action.

members of the Commission must not engage in anexchange or discussioni of

11 Attorney General Opinion No statutory provision prohibiting Commission members from posting on a blog. Members of Commission must not engage in exchange or discussion of matters that foreseeably will come before the Board for official action. It is incumbent upon Commission members to avoid any action that could be construed as an attempt to evade the requirements of the law.

Members of Commission must not engage in exchange or discussion of matters that foreseeably will

12 Ch. 119, F.S. The Public Records Act Public records means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. See Section (12), F.S.

photographs, films, sound recordings, data processing software, or other material, regardless of the

13 Disclosure of Public Records Every person who has custody of a public record shall permit therecordtobeinspectedandcopiedby any person desiring to do so, at any reasonable time, under reasonable conditions, i and under supervision i by the custodian of the public records. Section (1)(a),F.S. )

to do so, at any reasonable time, under reasonable conditions, i and under

14 Public Entity s Facebook Page Material placed on a public entity s Facebook page would be presumably in furtherance of public business and, therefore, subject to disclosure under Ch. 119, F.S. Material placed on the Facebook page of a friend of a public entity may also be subject to Ch. 119, F.S., if the information was made or received in connection with the transaction of official business by or on behalf of a public agency. See AGO

Material placed on the Facebook page of a friend of a public entity may also be subject to Ch. 119, F.S.

15 Chapter 119 Disclaimer

16 Chapter 119 Disclaimer (continued)

17 Records Retention All public records must be maintained in accordance with the appropriate retention schedule established by the Florida Division of Library and Information Services.

18 Social Media Content Depending on the specific use or intent of a particular social media source, content may be considered transitory messages. See Item #146, General Records Schedule GS1 SL for Stateand Local Agencies.

19 Transitory Messages Transitory Messages are Public Records. The following is from the State Records Retention Schedule: Transitory messages are messages of short term value based upon the content or purpose of the message, not the format used to transmit it (i.e. reminders, event notices, etc ). Transitory messages are not intended to formalize or perpetuate knowledge, do not set policy, establish guidelines, confirm a transactionti or act as a receipt. Retain until obsolete, superseded or administrative value is lost.

content or purpose of the message, not the format used to transmit it (i.e. reminders, event notices, etc ).

20 Other Examples of Social Media

21 Texts are Public Records Orange County Textgate County Commissioners receipt of text messages related ltd to the sick ik time initiative. iti Public records request made. Not all commissioners retained the text messages State Attorney conducted investigation and found that commissioners did not act knowingly when they deleted dtext messages, as they were not aware that text messages were public records

22 Texts are Public Records The State Attorney imposed a $500 fine against the County Mayor and the four County Commissioners who received text messages that could not be produced. Citizen group that filed request for public records, and then filed suit when records were not produced received $90,000 to cover attorney fees and court costs.

23 Retention of Text Messages Personal responsibility to copy and e mail text messages to your own municipal e mail to maintain on server. Companies to assist in retaining text messaging and Barracuda Networks, Symantec, Gov Live Vault (not an endorsement of any company or system) Best practice is to not use text for conducting government business. Pick up the telephone and talk to the other party.

24 Facebook

25 YouTube

27 TWITTER

28 Goren, Cherof, Doody & Ezrol, P.A QUESTIONS?

VILLAGE OF PALMETTO BAY PUBLIC RECORD REQUEST POLICY

VILLAGE OF PALMETTO BAY PUBLIC RECORD REQUEST POLICY TABLE OF CONTENTS I. Introduction II. III. IV. Scope Purpose References V. Definitions VI. VII. VIII. Policy Determination of Public Record for Village